Regulatory Update: DOL Updates Employee Representation During Inspection

On August 29 the Department of Labor announced a notice of proposed rulemaking to revise regulations regarding who can be authorized by employees to act as their representative to accompany OSHA  compliance officers during physical workplace inspections.

The proposed rule clarifies that employees may authorize an employee, or they may authorize a non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection.

The proposed changes also clarify that third-party representatives are not limited to industrial hygienists or safety engineers, two examples included in the existing regulation. Third-party representatives may be reasonably necessary because they have skills, knowledge or experience that may help inform the compliance officer’s inspection. This information may include experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.

“Congress considered worker participation a key element of workplace safety and health inspections when it passed the Occupational Safety and Health Act,” explained Assistant Secretary for Occupational Safety and Health Doug Parker, in a statement. “This proposal aims to make inspections more effective and ultimately make workplaces safer by increasing opportunities for employees to be represented in the inspection process.” 

In addition to the NPRM’s proposed revisions, OSHA is also seeking public comment on the criteria and degree of deference OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection. 

The Occupational Safety and Health Act gives the employer and employees the right to have a representative authorized by them accompany OSHA officials during a workplace inspection to aid the investigation. Employee participation and representation is critical to an inspector’s ability to complete a thorough and effective workplace investigation and helps OSHA gather information about the job site’s conditions and hazards.

The proposed revisions do not change existing regulations that give OSHA compliance officers the authority to determine if an individual is authorized by employees and to prevent someone from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection, or to limit participation to protect employer trade secrets.